RAYMOND LEARY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raymond Leary was convicted of robbery involving a motor vehicle after he obtained a ride from Debra Koury, assaulted her, and drove away in her car. On appeal, Leary challenged the jury instruction for failing to define the element of intent to deprive, but the court affirmed his conviction, finding the error was not fundamental given the overwhelming evidence of the taking.
The failure to charge on the element of intent was error but not fundamental error. Where evidence clearly and undisputedly shows property taken from another by force and transported elsewhere, the intent to deprive is an undeniable inference, and failure to instruct on intent does not constitute a deprivation of due process, particularly when no objection was made at trial and the issue was not raised.
[1] A failure to instruct the jury on the element of intent in a robbery charge constitutes prejudicial error.
[2] A failure to instruct on intent in a robbery charge is not fundamental error when the evidence clearly and indisputably shows the property was taken by force and transpor…
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Join FLexlaw to unlock all legal intelligence“failing to charge on the element of intent is prejudicial error. Bell v. State, 394 So. 2d 979 (Fla.1981). We do not agree, however, that it is necessarily error of fundamental proportions.”
Establishes the distinction between prejudicial error and fundamental error in jury instructions.
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Join FLexlaw to unlock all legal intelligenceDebra Koury picked up Raymond Leary at a service station after he requested a ride, claiming his car had broken down. After requesting to be let out, …
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HERSEY, Judge.
Debra J. Koury was driving to work alone, in West Palm Beach, early one morning and stopped at a service station. She was approached by appellant, Raymond Leary, who told her that his car had broken down and he needed a ride. She obliged and a short time later Leary asked her to stop the car and let him out. She did so whereupon Leary began slapping her in the face. She ultimately succeeded in exiting the car and ran around to its rear while Leary demanded that she get back in the car. She approached a passerby who indicated the location of a telephone. As she proceeded in its direction Leary drove off in her automobile. Some time later the same day Leary was arrested while still in the automobile in Sebring, Florida.
After the presentation of evidence at Leary’s jury trial for robbery involving a motor vehicle, the court charged the jury on the applicable law, which included the instruction on robbery contained in the standard jury instructions.
Among other things, appellant Leary, argues on appeal that the standard jury instructions neglect to include and define “intent to deprive the owner of his property” as a necessary element of the crime of robbery. He further urges that this deficiency amounts to fundamental error, as he must since there was no proper objection to the charge in the trial court.
We agree that failing to charge on the element of intent is prejudicial error. Bell v. State, 394 So. 2d 979 (Fla.1981). We do not agree, however, that it is necessarily error of fundamental proportions. Where, as here, the evidence is clear and undisputed that property is taken from another by the use of force and transported to another locality, the undeniable inference is that there was an intention to deprive the owner of that property. There was neither evidence nor argument raising specific intent as an issue in this case. Under such circumstances failure to instruct on intent does not amount to a deprivation of due process. State v. Smith, 240 So. 2d 807 (Fla.1970). The error here was not “fundamental.” Williams v. State, 400 So. 2d 542 (Fla.3d DCA 1981). Appellant having failed to preserve the error by appropriate objection we are not obligated to recognize it as an operative factor on appeal. Castor v. State, 365 So. 2d 701 (Fla.1978).
The additional points urged for reversal are similarly unmeritorious.
Accordingly, we affirm.
AFFIRMED.
MOORE and HURLEY, JJ., concur.
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Stewart v. State, 420 So. 2d 862 (Fla. 1982)…l to what the jury must consider in order to convict. Gibson v. State, 403 So. 2d 1019 (Fla. 3d DCA 1981), review granted, Feb. 15, 1982; Williams v. State, 400 So. 2d 542 (Fla. 3d DCA), review denied, 408 So. 2d 1096 (Fla.1981). See Leary v. State, 406 So. 2d 1222 (Fla. 4th DCA 1981). In the instant case Stewart took the stand in his defense and admitted that he stole personal property from the victim. Intent to permanently deprive another of property, therefore, was not at issue due to Stewart’s admission. […
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Steele v. State, 561 So. 2d 638 (Fla. 1st DCA 1990)…e omission, without objection, of the intent element from a robbery instruction was harmless error. The Williams court stated that fundamental error must involve a critical and disputed issue at trial. 400 So. 2d at 544-545. See also Leary v. State, 406 So. 2d 1222 (Fla. 4th DCA 1981), where the court agreed that failure to charge on the element of intent is prejudicial error, but held where there was neither evidence nor argument raising specific intent as an issue in the trial, failure to instruct on intent…
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Morton v. State, 459 So. 2d 322 (Fla. 3d DCA 1984)…d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); Henderson v. State, 429 So. 2d 1284 (Fla. 3d DCA 1983); Lewis v. State, 411 So. 2d 880 (Fla. 3d DCA 1981), rev. denied, 418 So. 2d 1279 (Fla.1982); Leary v. State, 406 So. 2d 1222 (Fla. 4th DCA 1981); Gibson v. State, 403 So. 2d 1019 (Fla. 3d DCA 1981), rev. denied, 436 So. 2d 32 (Fla.1983); McMurtroy v. State, 400 So. 2d 547 (Fla. 3d DCA), rev. denied, 408 So. 2d 1094 (Fla.1981); Williams v. State, 400 So. 2d 542 (Fla. 3d DC…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- State v. Smith, 240 So. 2d 807 (Fla. 1970)
- Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)
- Bell v. State, 394 So. 2d 979 (Fla. 1981)